Lou Sportelli, DC, CVP's Department Head on Risk Management and
Malpractice, sent this to me last week. We all need to pay close
attention to what is being said regarding pre-employment physicals.
Volume 10 Number 5
Thursday, February 1, 2001
ISSN 1521-5350
News - Professional Liability
Page 188
New Jersey - Doctors Giving Pre-Employment Exams Must Reveal
Serious Medical Conditions
New Jersey physicians hired to perform pre-employment physicals
owe a non-delegable duty to inform patients of potentially serious
medical conditions that are discovered, the New Jersey Supreme
Court ruled Jan. 23 (Reed v. Bojarski, N.J., No. A-63-99, 1/23/01).
The decision reverses a judgment entered upon a jury verdict, and
allows the widow of Arnold Reed, who was told following a pre-
employment physical that he was in good health, to proceed with a
lawsuit against Michael H. Bojarski, DO, and Life Care Institute Inc.
The court held that a physician's direct communication of
information about medical abnormalities to a patient provides the
best chance that the patient can get prompt care, "and the best hope
of avoiding falling through the cracks of a multi-party system."
Reed became sick about six months after the physical and died about
eight moths later, at age 28, of a condition that had been noted in
the pre-employment physical, the court wrote. A heavy-equipment
operator, Reed was required by Occupational Safety and Health
Administration regulations to undergo a pre-employment physical in
1991, and the job of performing the examinations was contracted to
Environmental Medicine Resources Inc. (EMR), of Georgia. In turn, EMR
subcontracted the pre-employment examinations to Life Care, of
Glassboro, N.J. Among other things, Life Care was to perform a chest
X-ray and rate it as either normal or abnormal. Bojarski performed
Reed's physical. A Life Care radiologist read Reed's chest X-ray and
reported to Bojarski that Reed had a cavity in the center of his
chest. "It is an accepted medical fact that, among men in their
twenties, a widening [chest cavity] may be an indicator of
lymphoma, including Hodgkin's disease," according to the decision.
Th!
e radiologist also noted that Reed's heart was unusually large.
Court Looks to Other Jurisdictions
Bojarski ranked the X-ray as abnormal and sent it, along with the
results of Reed's physical, to EMR. Two days later, the radiologist
gave Bojarski a written report and recommended a follow-up CT-
scan for Reed, but Bojarski did not convey the information or the
report to EMT, the decision said. "Inexplicably," the court wrote, an
EMR physician "wrote to Reed and informed him that he was in good
health," and did not inform Reed of the chest cavity.
Within about six months, Reed had lost 25 pounds, had flu-like
symptoms, and returned to Life Care for another examination.
Bojarski did not ask Reed whether he had been told of the chest
condition, the court wrote, and within about one month, Reed was
hospitalized. A chest X-ray revealed a large mass in Reed's chest,
and he was diagnosed with Stage IIB Hodgkin's disease and died eight
months later. Reed's widow sued. Summary judgment was granted to
the radiologist, and EMR settled. The case against Bojarski and Life
Care went to trial, and a jury decided Bojarski had not deviated from
the accepted standards of medical care. Reed's widow appealed, and
an appeals court affirmed. The state's highest court granted the
widow's petition for certification, and reversed. The state high
court noted that jurisdictions around the country have adopted three
approaches to whether a physician owes a duty when giving a pre-
employment physical. The majority view is that a physician-patient
r!
elationship is absent during a pre-employment physical, and
therefore the physician has no duty to the patient to disclose
medical conditions.
New Jersey Physicians Owe Duty of Care
A second stance adopted by courts holds that a doctor-patient
relationship is created when a physical is performed by a third party
physician, but only to the extent of the examination.
A third line of cases has held that, even if there is no physician-
patient relationship, a physician has a duty to act with reasonable
care based on common-law negligence principles.
"New Jersey has long recognized that a physician owes a duty of
reasonable care to the nontraditional patient in the context of a
third-party examination," the court wrote. "Although the pre-
employment physical clearly does not establish a traditional
physician-patient relationship, that is of no moment." The key
factor, the court continued, is that a relationship is established in
which the physician "is expected to exercise reasonable care
commensurate with his expertise and training, both in conducting
the examination and communicating the results to the examinee." To
the extent that a contract attempts to remove a physician from the
duty to inform a patient of the discovery of serious medical
conditions, those contracts violate New Jersey public policy and
common law, the court wrote.